Heyward v Bishop

[2015] ACTCA 58

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL

Case Title:

Heyward v Bishop

Citation:

[2015] ACTCA 58

Hearing Date:

7 May 2014

DecisionDate:

18 November 2015

Before:

Refshauge, Penfold, Ross JJ

Decision:

The appeal is dismissed.

Catchwords:

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – Interference with Judge’s Finding of Fact – whether Magistrate gave inadequate reasons for preferring evidence of police officers.

EVIDENCE – Admissibility and Relevancy – whether breath-test evidence had been obtained in contravention of an Australian law or in consequence of such a contravention – appellant properly taken into custody – appellant consented to provide breath sample – no suggestion that provision of breath sample resulted from any use of excessive force on appellant after he was taken into custody – breath-test evidence obtained despite, not in consequence of, any use of excessive force – claim of use of excessive force, even if made out, did not require consideration of admissibility of breath test evidence under Evidence Act, s 138.

Legislation Cited:

Evidence Act 2011 (ACT), s 138(1),

Human Rights Act 2004 (ACT), s 19
Supreme Court Act 1933 (ACT), ss 37O, 37O(3)

Road Transport (Alcohol and Drugs) Act 1977 (ACT), ss 11,12, 19(1)

Cases Cited:

Acuthan v Coates (1986) 6 NSWLR 472

Richard Heyward v Leigh Bishop [2013] ACTSC 202
Fox v Percy 214 CLR 118
Heyward v Bishop [2013] ACTSC 202
Lawson v Lee (1992) 58 SASR 382
M v The Queen (1994) 181 CLR 487
O’Brien v Noble [2012] ACTCA 13
Papps v Police [2000] SASC 183
Pettitt v Dunkley [1971] NSWLR 376
R v Bormann (2010) 244 FLR 105

Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247

Parties:

Richard John Heyward (Appellant)

Leigh Bishop (Respondent)

Representation:

Counsel

Mr S Gill (Appellant)

Mr J Lundy (Respondent)

Solicitors

Sharman Lynch (Appellant)

ACT Director of Public Prosecutions (Respondent)

File Number:

ACTCA 64 of 2013

Decision under appeal: 

Court:  ACT Supreme Court

Before:  Burns J

Date of Decision:         3 October 2013

Case Title:  Richard Heyward v Leigh Bishop

Citation: [2013] ACTSC 202

THE COURT:

Introduction

1. Richard Heyward (the appellant) has appealed from a decision of Burns J (Richard Heyward v Leigh Bishop [2013] ACTSC 202) dismissing his appeal from a decision of a Magistrate, who had found him guilty of an offence under s 19(1) of the Road Transport (Alcohol and Drugs) Act 1977 (ACT) (the Alcohol and Drugs Act).

Background

1. The background to this matter was summarised by Burns J as follows:

1.On 24 November 2011, police observed the appellant to be the driver of a motor vehicle on a public street in Dickson in the Australian Capital Territory. Police signalled for the vehicle to stop, which it did, and police proceeded to speak to the male driver of the vehicle, the appellant. The appellant identified himself and underwent a roadside screening test, which returned a positive result. The appellant was informed that as a result of the test he would be placed…